Shell Offshore Inc. v. Tesla Offshore, L.L.C. et al
ORDER AND REASONS: ORDERED that Tesla's 174 motion in limine is GRANTED with respect to Ayers' credibility opinion regarding the Hills report and DENIED and/or DEFERRED in all other respects. FURTHER ORDERED that International's 180 motion in limine is GRANTED with respect to expert testimony by Daley and Ryan that any conduct was "willful" and DENIED and/or DEFERRED as set forth herein. Signed by Judge Lance M Africk on 9/28/2015.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHELL OFFSHORE, INC.
TESLA OFFSHORE, L.L.C., ET AL.
ORDER AND REASONS
Before the Court is a motion1 to exclude expert testimony filed by defendant, Tesla Offshore
LLC (“Tesla”), and a motion2 to exclude expert testimony filed by defendants, International
Offshore Services, L.L.C. and International Marine, LLC (collectively, “International”). Oppositions
have been filed by all parties.3 The motions are granted in part and denied in part as set forth herein.
For the purposes of deciding these motions, the material facts are straightforward and
undisputed. Tesla time-chartered the M/V INTERNATIONAL THUNDER from International for
the purpose of conducting an underwater archeological survey of the seafloor.4 Tesla installed
surveying equipment on the THUNDER, including a sonar “towfish” (“fish”), which was an 89”
metal tube towed by a winched cable.5 On November 2, 2012, while the “fish” was deployed from
and being pulled by the THUNDER at the end of 14,000 feet of cable, the fish hit a mooring line
holding in place the DEEPWATER NAUTILUS, a drilling rig owned by plaintiff, Shell Offshore,
R. Doc. No. 174. Tesla erroneously filed a memorandum in support of its motion without
filing the motion itself.
R. Doc. No. 180.
R. Doc. Nos. 156, 157.
See R. Doc. No. 152-1, at 1-2; R. Doc. No. 156-7, at 1; R. Doc. No. 157-3, at 1.
See R. Doc. No. 152-1, at 1-3; R. Doc. No. 156-7, at 1-2; R. Doc. No. 157-3, at 1-2.
Inc. (“Shell”).6 This case arises out of that alleged allision.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness
testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993); United States v.
Hitt, 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
“To qualify as an expert, ‘the witness must have such knowledge or experience in [his] field or
calling as to make it appear that his opinion or inference will probably aid the trier in his search for
truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004) (quoting United States v.
Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)). Additionally, Rule 702 states that an expert may be
qualified based on “knowledge, skill, experience, training, or education.” Hicks, 389 F.3d at 524;
see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (discussing witnesses whose
expertise is based purely on experience). “A district court should refuse to allow an expert witness
to testify if it finds that the witness is not qualified to testify in a particular field or on a given
subject.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (quoting Wilson v. Woods, 163 F.3d
935, 937 (5th Cir. 1999)). However, “Rule 702 does not mandate that an expert be highly qualified
in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be
See R. Doc. No. 152-1, at 4; R. Doc. No. 156-7, at 2; R. Doc. No. 157-3, at 3.
assigned to the testimony by the trier of fact, not its admissibility.” Id.; see Daubert, 509 U.S. at 596.
Daubert “provides the analytical framework for determining whether expert testimony is
admissible under Rule 702.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002). Both
scientific and nonscientific expert testimony is subject to the Daubert framework, which requires
trial courts to make a preliminary assessment to “determine whether the expert testimony is both
reliable and relevant.” Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004);
see Kumho Tire, 526 U.S. at 147.
A number of nonexclusive factors may be relevant to the reliability inquiry, including: (1)
whether the technique has been tested, (2) whether the technique has been subjected to peer review
and publication, (3) the potential error rate, (4) the existence and maintenance of standards
controlling the technique’s operation, and (5) whether the technique is generally accepted in the
relevant scientific community. Burleson, 393 F.3d at 584. The reliability inquiry must remain
flexible, however, as “not every Daubert factor will be applicable in every situation; and a court has
discretion to consider other factors it deems relevant.” Guy v. Crown Equip. Corp., 394 F.3d 320,
325 (5th Cir. 2004); see Runnels v. Tex. Children’s Hosp. Select Plan, 167 F. App’x 377, 381 (5th
Cir. 2006) (“[A] trial judge has ‘considerable leeway’ in determining ‘how to test an expert’s
reliability.’”). “Both the determination of reliability itself and the factors taken into account are left
to the discretion of the district court consistent with its gatekeeping function under [Rule] 702.”
Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000).
With respect to determining the relevancy of an expert’s testimony pursuant to Rule 702 and
Daubert, the proposed testimony must be relevant “not simply in the way all testimony must be
relevant [pursuant to Rule 402], but also in the sense that the expert’s proposed opinion would assist
the trier of fact to understand or determine a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320
F.3d 581, 584 (5th Cir. 2003). “There is no more certain test for determining when experts may be
used than the common sense inquiry whether the untrained layman would be qualified to determine
intelligently and to the best degree the particular issue without enlightenment from those having a
specialized understanding of the subject involved in the dispute.” Vogler v. Blackmore, 352 F.3d
150, 156 n.5 (5th Cir. 2003) (quoting Fed. R. Evid. 702 advisory committee’s note).
Collectively, the motions before the Court seek to exclude or limit the testimony of seven
different witnesses on a variety of different grounds.
Tesla moves to exclude the testimony of Ray Ayers (“Ayers”), an engineer retained by Shell
to opine regarding the cause of the mooring line failure.7 In arriving at his expert opinion, Ayers
examined the damaged mooring line, drew conclusions utilizing his experience with causes of
mooring line failure and his observation of the line’s physical condition, reviewed logs of the
mooring line tension, and rejected other possible physical causes based on available information.8
Ayers opines that the cause of the damage to the DEEPWATER NAUTILUS mooring line “is more
likely than not the tow rope for the M/V International Thunder sonar towed fish assembly.”9
Tesla’s makeweight criticism of Ayers’ methodology is not a sufficient basis for excluding
his entire expert testimony.10 However, Tesla does raise one non-spurious argument with respect to
R. Doc. No. 174, at 6.
R. Doc. No. 174-2, at 4-10.
R. Doc. No. 174-2, at 10.
For example, Ayers testified at his deposition that his methodology is “the scientific
method” in which “you look at evidence and you try to come up with hypotheses for why this
a portion of the report in which Ayers states that he “found the report (Exhibit 136) of Cliff Hills
of Bridon, who inspected the rope damage to be credible.”11 Tesla moves to exclude that portion of
Ayers’ testimony because Cliff Hills “is not listed as an expert or witness.”12 Shell responds that
Ayers can rely on Hills’ report because experts routinely rely on the reports of other experts.13
However, Ayers does not state that he relied on Hills’ report; rather, he merely states that he found
Hills’ report to be credible.14 Furthermore, Hills is not listed as a witness in the pretrial order15 and
Shell does not explain how the Hills report, itself, will be admissible at trial or how Ayers can
permissibly opine regarding the credibility of a non-testifying expert’s written report. Accordingly,
Tesla’s motion as to Ayers should be granted with respect to Ayers’ opinion that Hills’ report is
credible. The motion is denied as to Ayers in all other respects.
Tesla moves to exclude Holly Sharp (“Sharp”), a CPA “hired by Shell to evaluate its damage
claim.”16 Tesla asserts that Sharp (1) “has very limited knowledge of the drilling business, and is not
familiar with the types of expenses and costs incurred in the drilling of a well,” and (2) relied on
condition occurred. And so you work on trying to rule out certain hypotheses that couldn’t pass the
mustard. . . . And then you get left with the hypothesis that has the strongest potential for being the
right thing.” R. Doc. No. 174-1, at 3. Tesla’s criticism of this explanation as a “process of
elimination, and not a specific theory or technique as required by Daubert,” R. Doc. No. 174, at 7,
is rejected. The Court likewise rejects Tesla’s cursory assertion that Ayers “performed no forensic
testing and has no background in accident reconstruction” as bases for excluding his opinions. R.
Doc. No. 174, at 8. Such matters are subjects for cross-examination.
R. Doc. No. 174-2, at 10.
R. Doc. No. 174, at 8.
R. Doc. No. 184, at 14.
R. Doc. No. 174-2, at 10.
R. Doc. No. 171.
R. Doc. No. 174, at 14.
erroneous assumptions provided by Shell’s counsel regarding such expenses and costs.17 However,
Tesla does not suggest that Sharp failed to reliably apply “accepted accounting principles,” as she
asserts in her report.18 See Wellogix, Inc. v. Accenture, L.L.P., 715 F.3d 867, 881-82 (5th Cir. 2013)
(holding, in a case involving theft of specialized oil-and-gas-industry software trade secrets, that a
general computer sciences expert “did not need particular expertise in the oil-and-gas industry, or
complex services procurement, to help the jury understand software concepts and terms”).
Furthermore, the Court will be in a better position to determine at trial whether Sharp’s factual
assumptions are supported by the record. See Moore v. Int’l Paint, L.L.C., 547 F. App’x 513, 515
(5th Cir. 2013) (“Generally, the ‘fact-finder is entitled to hear [an expert’s] testimony and decide
whether . . . the predicate facts on which [the expert] relied are accurate.’”) (quoting Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002)). Tesla’s motion as to Sharp is denied at this stage
of the proceedings, subject to Tesla’s right to re-urge specific objections to Sharp’s trial testimony.
The Marine Experts
Finally, Tesla and International move to exclude or limit the testimony of each other’s
marine experts, as well as the marine experts of Shell and third-party defendant, Sea Eagle Fisheries,
Inc. (“Sea Eagle”), for various reasons. The motions address the testimony of Ken Parris and Andre
LeGoubin, witnesses for Shell;19 Marc Fazioli, a witness for International;20 Maurice Ryan, a witness
for Sea Eagle;21 and Gregory Daley, a witness for Tesla.22 At least one party contends that each of
R. Doc. No. 174, at 14.
R. Doc. No. 174-8, at 6.
R. Doc. No. 174, at 8-14; R. Doc. No. 180-1, at 3-7.
R. Doc. No. 174, at 15-16; R. Doc. No. 180-1, at 3-4.
R. Doc. No. 174, at 16-17; R. Doc. No. 180-1, at 3-4.
R. Doc. No. 180-1, at 180-1, at 8-9.
these witnesses should be excluded or limited due to lack of expertise in sonar surveying.23
“Rule 702 does not mandate that an expert be highly qualified in order to testify about a
given issue.” Huss, 571 F.3d at 452. “Differences in expertise bear chiefly on the weight to be
assigned to the testimony by the trier of fact, not its admissibility.” Id. “A lack of specialization
should generally go to the weight of the evidence rather than its admissibility . . . .” United States
v. Wen Chyu Liu, 716 F.3d 159, 168 (5th Cir. 2013). “Thus ‘an expert witness is not strictly confined
to his area of practice, but may testify concerning related applications; a lack of specialization does
not affect the admissibility of the opinion, but only its weight.’” Id. at 168-69 (quoting Wheeler v.
John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991)).
As presented by the parties, these arguments are threadbare. In its motion, International does
little more than globally contend that “any and all of the other parties’ experts in this case” lack
sufficient relevant experience in sonar surveying.24 But even if the opposing party’s experts lack
expertise in sonar surveying, a finding the Court does not make, International does not point to any
opinions that would require such expertise, rather than expertise in marine operations generally.
Tesla discusses the experts individually, contending that the testimony of Le Goubin,25
R. Doc. No. 174, at 10 (“Le Goubin has absolutely no specialized knowledge of Tesla’s
sonar surveying or how those operations are conducted.”); R. Doc. No. 174, at 13 (“Moreover,
Parris’ complete lack of knowledge regarding sonar surveying operations and crewing warrants
precluding any opinions and/or testimony about Tesla entirely.”); R. Doc. No. 174, at 15 (“Like the
other marine experts in this case with no survey experience, [Fazioli’s] testimony concerning survey
operations and the practices and procedures of survey companies, such as Tesla, should be
limited.”); R. Doc. No. 174, at 17 (“Ryan has no experience in the management or operations of
deepwater sonar surveying.”); R. Doc. No. 180-1, at 4 (“Not one of the experts retained by the other
parties in this matter has any experience in surveying work . . . .”).
R. Doc. No. 180-1, at 4.
R. Doc. No. 174, at 8-10.
Fazioli,26 Parris, and Ryan with respect to Tesla’s surveying operations should be excluded based
on a purported lack of expertise in surveying.27 The Court remains unpersuaded that their opinions
require such expertise.28 This case arises out of an incident involving vessels at sea, and the
challenged experts are undisputedly qualified with respect to marine operations. Although the
INTERNATIONAL THUNDER happened to be engaged in sonar surveying, the Court declines to
hold categorically that only an expert in sonar surveying can comment on Tesla’s actions in this
case. See Wen Chyu Liu, 716 F.3d at 168-69 (“[A] lack of specialization does not affect the
admissibility of the opinion, but only its weight.”). The Court will be in a better position at trial, in
light of a developed factual record and testimony establishing each expert’s respective
qualifications, to decide specific objections to specific opinions purportedly outside the scope of any
particular witness’s expertise.29
Next, International moves pursuant to Rule 403 to prevent two of Shell’s experts, LeGoubin
and Parris, from offering purportedly cumulative testimony.30 The Court may “exclude relevant
evidence if its probative value is substantially outweighed by a danger of . . . needlessly presenting
cumulative evidence.” Fed. R. Evid. 403 (emphasis added). The Court will be in a better position
at trial to assess whether any testimony is cumulative. The motion is denied at this time.
International also moves to prohibit Daley and Ryan from “using legally conclusory
R. Doc. No. 174, at 15-16.
R. Doc. No. 174, at 16-17.
Accordingly, the Court does not at this time decide the qualifications of any particular
The Court also denies these motions to the extent that they assert other purported lack of
necessary experience, such as experience in “accident reconstruction or investigation,” R. Doc. No.
174, at 12, with leave to re-urge specific objections at trial.
R. Doc. No. 180-1, at 5.
terminology that seems clearly calculated to suggest to the jury a finding of gross negligence so as
to void Sea Eagle’s indemnity obligations to International.”31 Specifically, International moves to
preclude the use of the words “‘willful,’ ‘reckless,’ and ‘careless.’”32 Such argument is apparently
based on a contractual provision which states that “no indemnifying party under this agreement shall
be liable to an indemnified party to the extent of claims caused by the indemnified party’s gross
negligence or willful misconduct.”33
International cites cases prohibiting experts from offering legal conclusions to be decided
by the jury,34 but it does not cite cases prohibiting experts from using words “calculated to suggest
to the jury” a particular legal conclusion. “Depending on how the actual questions and answers are
framed,” such testimony using the words “reckless” or “careless” “might or might not be
objectionable–a circumstance this Court cannot predict in a vacuum.” See In re Actos, No. 11-2299,
2014 WL 120973, at *12 (W.D. La. Jan 10, 2014). Although the Court has significant reservations
about whether any such testimony would assist the jury in its deliberations, the motion is denied at
this time with respect to the words “reckless” or “careless,” reserving the right to re-urge an
objection at trial. However, the motion is granted with respect to testimony that any conduct was
“willful.” The Court finds that such testimony would not assist the jury in its deliberations as the
jury is capable of making such a determination without the assistance of such expert testimony and
the probative value of such evidence is substantially outweighed by the danger of unfair prejudice.35
International also contends that Daley’s testimony should be excluded because he “reached
R. Doc. No. 180-1, at 8.
R. Doc. No. 180-1, at 8.
R. Doc. No. 73-1, at 8 (emphasis omitted).
R. Doc. No. 180-1, at 6-7.
See Fed. R. Evid. 403, 702(a).
definitive conclusions on issues where the testimony or other evidence conflicted or was in
dispute.”36 According to International, Daley “admitted in his deposition that he based various
opinions on his own determination of which witness he found to be more credible.”37 First, the Court
notes that “when facts are in dispute, experts sometimes reach different conclusions based on
competing versions of the facts.” Moore, 547 F. App’x at 515 (alteration and quotation marks
omitted). “Generally, the ‘fact-finder is entitled to hear [an expert’s] testimony and decide
whether . . . the predicate facts on which [the expert] relied are accurate.’” Id. (quoting Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002)).38 Second, the purported “credibility
determination” International refers to was Daley’s consideration of Shell’s OVID safety inspection,
which the Court has already held to be relevant.39 The basis of Daley’s opinion is a proper subject
for cross-examination, but not a basis for excluding his opinion entirely. Any such argument is
rejected at this time.
International also asserts that Daley, Tesla’s expert, “met with unspecified Tesla employees
whom he could not name, and who he purports gave him additional information on which he based
his conclusions exculpating Tesla.”40 International contends that Daley’s opinions should be stricken
because of his presumed reliance on such “unsworn, selective, and presumably biased
information.”41 However, International does not articulate a single specific opinion or piece of
R. Doc. No. 180-1, at 8.
R. Doc. No. 180-1, at 8.
The cases cited by International, which prohibit an expert witness from opining about the
truthfulness of a witness, are not apposite. R. Doc. No. 180-1, at 9.
R. Doc. No. 216, at 4 (deferring until trial an objection to the document pursuant to Rule
R. Doc. No. 180-1, at 10.
R. Doc. No. 180-1, at 10.
information Daley allegedly improperly derived from Tesla employees; the motion is too abstract
to be granted and should be denied. Any lack of specificity can be brought to the forefront through
Finally, Tesla and International collectively contend that Parris, LeGoubin, and Daley should
be precluded from offering legal conclusions.42 For example, International contends that neither
Parris nor Le Goubin should be permitted to opine whether the captain of the INTERNATIONAL
THUNDER violated the COLREGS.43 International’s argument is surprising in light of the fact that,
as Shell points out, even International’s hired expert opines regarding the COLREGS.44
This Court has previously held that expert testimony that a party “violated OSHA regulations
and that such violations constitute unseaworthiness and negligence are impermissible legal
conclusions.” In re Midland Enters., Inc., No. 00-3750, 2002 WL 31780156, at *3 (E.D. La. Dec.
11, 2002) (Africk, J.) (emphasis added). Nonetheless, at this time, the Court finds that testimony
analyzing the conduct of the various parties with respect to various applicable rules and regulations
may assist the trier of fact without crossing the line into impermissible legal conclusions. The Court
will be in a better position at trial to decide specific objections. Cf. Mobil Exploration & Producing
v. A-Z Grant Int’l Co., 91-3124, 1996 WL 194931, at *3 (E.D. La. Apr. 22, 1996) (Fallon, J.).45
R. Doc. No. 174, at 12; R. Doc. No. 180-1, at 7-8.
R. Doc. No. 180-1, at 7. No party has disputed that the COLREGS applied to the
R. Doc. No. 184, at 10.
As the court explained in Mobile Exploration:
Plaintiffs are correct that otherwise admissible expert testimony “is not
objectionable because it embraces an ultimate issue to be decided by the trier of
fact.” Fed. R. Evid. 704(a). However, Rule 704 “does not open the door to all
opinions” and is not “intended to allow a witness to give legal conclusions.” Owen
v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983); see also Matthews v.
Ashland Chem., Inc., 770 F.2d 1303, 1310-11 (5th Cir. 1985). As the Fifth Circuit
Accordingly, the motion is denied at this time except with respect to testimony and evidence related
to the applicability of the COLREGS to the DEEPWATER NAUTILUS. For reasons set forth in the
contemporaneous order and reasons addressing Shell’s in limine motion regarding navigational
statutes, the COLREGS did not in fact apply to the DEEPWATER NAUTILUS.46
Accordingly, in light of the foregoing,
IT IS ORDERED that Tesla’s motion in limine is GRANTED with respect to Ayers’
credibility opinion regarding the Hills report and DENIED and/or DEFERRED in all other
has explained, “the major surviving exception” to Rule 704(a) is that “an expert may
not express an opinion on a conclusion of law.” United States v. Lueben, 812 F.2d
179, 193-84 (5th Cir. 1987).
In the Court’s opinion, Hill’s proposed testimony regarding the existence and
applicability of certain regulations–Coast Guard’s regulations, CFRs–to the Rowan
Paris and whether the alleged mislabeling was consistent or inconsistent with these
regulations does not amount to a legal conclusion. However, whether such action
violated the terms of the contract or whether such action caused the alleged damage
is a conclusion best left for the jury.
1996 WL 194931, at *3. Likewise, as the court explained in In re Actos, “[a]n expert, it is
undisputed, cannot instruct the jury as to applicable law, however, [he] can rely upon his
understanding of rules and regulations governing his industry when formulating his opinion.” 2014
WL 120973, at 12.
Tesla’s motion is, therefore, denied as moot with respect to Parris’s expert opinion that the
COLREGS did not apply to the DEEPWATER NAUTILUS. R. Doc. No. 174, at 12-13. Parris’s
proposed testimony regarding the applicability of Safety and Environmental Management Systems
(“SEMS”) regulations, R. Doc. No. 174, at 11-12, is governed by the Court’s separate order and
reasons addressing SEMS-related matters. R. Doc. No. 224.
IT IS FURTHER ORDERED that International’s motion in limine is GRANTED with
respect to expert testimony by Daley and Ryan that any conduct was “willful” and DENIED and/or
DEFERRED as set forth herein.
New Orleans, Louisiana, September 28, 2015.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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